Part XII education law

Transcription

1 Part XII education law All who have meditated on the art of governing mankind have been convinced that the fate of empires depends on the education of youth. Aristotle Public Education In Ohio Tuition and Residency I n Ohio, a child may attend school in the school district in which his or her parent lives. The parent is not responsible for paying tuition, though the parent may be responsible for other school-related fees. Parent refers to either parent, unless the parents are separated or divorced, in which case, parent refers to the residential parent who has legal custody of the child. In cases where custody is shared under a shared parenting plan, Ohio law considers both parents residential parents and legal custodians no matter where the child physically resides. For this reason, children who are cared for under a shared parenting plan may attend school free in the district where either parent lives, even if the child currently lives outside the district in which he or she was originally enrolled. A child who does not live with a parent can attend a public school without paying tuition if: the child is in the legal or permanent custody of a government agency or a person other than the child s natural or adoptive parent; the child resides in a home for children within the school district; or the child receives special education. If their residential district participates in open enrollment, parents may send their child to a contiguous school district without tuition payment as long as the contiguous district also has an open enrollment policy. Each district determines its own policy and must make the policy available to district residents upon request. In 2004, Ohio adopted a rule to allow grandparents to get physical custody of and control over their grandchildren. This rule entitles grandchildren to attend school within the district in which the grandparent resides without paying tuition and without requiring a legal change in custody. Instead, the child s parent, guardian or custodian completes a power of attorney document that allows the child to attend school in the grandparent s school district. If the child s parent cannot be located, the grandparent can create a child caretaker authorization affidavit to provide the same benefit. In addition, students may attend school without paying tuition under certain circumstances, as follows: All individuals who are at least 18 years of age, who have not received a diploma, who live apart from their parents, and who support themselves, may attend school in the district in which they live. Any children under age 18 who are married may attend school in the district in which they live. Any child who lives with another adult while the parent(s) are in the military may attend school in the caretaker adult s district as long as the child s parent(s) intend to return to that district when the military tour ends. Any child under age 22 who moves outside the home district after a parent s death may attend school in the district he or she attended before the parent s death for the rest of the current school year. Any child under age 22 whose parent(s) are building a new home may attend school in the new school district for up to 90 days without paying tuition as long as the parent(s) give the superintendent of the new district a sworn statement indicating the location of the new home, their intent to live in it and written confirmation by the builder that the house is being built. 200

2 Any child whose parent(s) have contracted to buy a home in a new school district may attend school in that district for up to 90 days if the parents provide a sworn statement indicating the location of the home, their intent to live there and confirmation by the real estate officer or bank officer that the parent(s) are in the process of buying the home. A child who, with the parent, is under the care of a shelter for domestic violence may attend school in the district in which the shelter is located. Any child whose parent has moved out of the district after the child s senior year of high school has started may complete the senior year within that district, as long as the board of education consents. Vocational schools (also called career centers or career technical centers) may be open to students in a number of districts. While tuition must be paid to attend these schools, the sending school district, rather than the parent(s), pays the tuition. Through the Individualized Education Program (IEP) process, a district may send a special education child to another district, a private school or arrange a residential placement for educational services. In some cases, these placements are made through other codified special education procedures (commonly referred to as due process ) or by court order. Tuition obligation is determined at the time of any such placement. Finally, a district s board of education may allow students who live with their parents in another district to pay tuition to attend its school(s). Each district that accepts tuitionpaying students does so under its own plan and with its own requirements. Custody Only a parent or guardian may control educational decisions for a child under the age of 18. Ohio recognizes natural or adoptive parents as the rightful decision-makers for their minor children, unless the state has revoked parental rights through very specific court proceedings. However, courts may become involved in determining who will make decisions for a minor child in several situations, including when parents divorce or die, or when a child is removed from the parents custody. Compulsory attendance Ohio mandates compulsory education for all children living in Ohio who are between six and 18 years of age. Attendance is required until the student meets the state s minimum educational standards and receives a diploma. Ohio s compulsory attendance laws are enforced through the courts. Attendance Excuses for Physical and Mental Disabilities Children who have a physical or mental disability and a valid excuse may be excused from compulsory school attendance. An excuse based on a physical disability must be written by a licensed physician. An excuse based on a mental disability may be written by a non-physician mental health professional, including a licensed psychologist or a school psychologist. A properly excused child may be entitled to have the school district provide home instruction if the child will be out of school for a lengthy period of time. The home instruction program should meet the child s individual needs and be taught by a teacher qualified in the required subject areas. Home instruction should continue until the student is medically able to return to school. Home Schooling Parents may wish, for a variety of reasons, to educate their children at home. This is known as home schooling. A parent who wishes to home school a child must apply to the county or district superintendent. In the application, the parent must agree to educate the child in all areas prescribed by state standards and must provide details about how this instruction will be done, who will teach the child and what textbook, courses or teaching 201

3 materials will be used. Also, the parent must provide assurance that the child will receive a minimum of 900 hours of home education for the school year. The parent must be a high school graduate, but need not be a certified teacher to home school his or her own child. At the end of the school year, the parent must send an academic assessment report to the superintendent. The report should include the results of a nationally normed, standardized achievement test that was administered to the child by a certified teacher or someone acceptable to the superintendent and the parent. If the child s composite achievement test score is at or above the 25th percentile, then the child s performance level will be considered reasonably proficient. The parent also must submit a written narrative, prepared by a certified teacher or someone acceptable to both the superintendent and the parent. The narrative must state that samples of the child s work have been reviewed and indicate that the child s academic work matches his or her abilities. Age / Schooling Certificate A student may be excused from compulsory school attendance if the student must work to help a parent or legal guardian. In order to be excused, a student must submit an application to the district superintendent for an age or schooling certificate. This certificate allows the student to work if that student has attended school within the district for the past two years and has diligently attempted to complete the necessary course work. To be eligible for an age or schooling certificate, the student may not be addicted to drugs or alcohol and must demonstrate that the student s home conditions are such that the student s financial support is necessary. Also, the student must be employed where children are lawfully allowed to work and the employer must provide the school district superintendent with written confirmation of the employment offer. If the student stops working for any reason whatsoever, the employer must notify the superintendent within 48 hours. While excusing a student from compulsory school attendance, an age or schooling certificate does not necessarily excuse the student from all educational programming requirements. A student of 14 or more years of age must continue in a part-time educational program through night or day courses offered by the district, if available, or outside the district if necessary. A child of 16 or more years of age may have this requirement specifically waived by the district s superintendent. General Education Development (GED) Test Although most individuals cannot take the GED test until they turn 19, a student between the ages of 16 and 18 is permitted to take the GED test and be excused from compulsory school attendance with permission from both a parent, legal guardian or court administrator, and the school superintendent in the district in which the student last attended or currently resides. In order to qualify to take the GED prior to the age of 19, the student must have withdrawn from the public school or been enrolled in home schooling. Truancy Truancy is considered a major juvenile offense that subjects both the student and parents to court action. According to Ohio law, parents must make sure their children are not truant from school. A child who is a chronic truant is subject to the juvenile legal system. Chronic truant refers to any child of compulsory school age who is absent from the public school without a legitimate excuse for absence of seven or more consecutive school days, 10 or more school days in one school month or 15 or more school days in a school year. The juvenile court may impose penalties on the parent, the child or both. However, a school district may choose to notify the parent and student before referring the student to juvenile court. The district also may require a parent and the student to appear at school. If the parent and student do not respond to the school s notice to appear, the school may refer the case to the court and to the 202

4 registrar of the Ohio Bureau of Motor Vehicles (BMV). A truant student who has a driver s license may receive a license suspension that will last until the student reaches the age of 18 or satisfies the BMV that he or she is attending school. Some schools offer mediation programs to help resolve the truancy concerns before a court intervention is necessary. Truancy mediation programs operate in a number of school districts throughout the state. Alternatives to Public Education Voucher Programs Voucher programs, also known as scholarship programs, were established by the state for students who live in a public school district that has been classified as needing improvement and has been placed under a federal court order requiring the state superintendent to manage the district. The law presently allows students to use vouchers to help pay tuition costs for private schooling. Ohio is included among the states that have instituted voucher programs, but, as of 2011, Cleveland was the only city in the state to have a voucher program. Voucher programs give priority to lowincome families who cannot afford to pay private school tuition costs or move to another school district. To receive scholarships, which may cover up to 90 percent of private school tuition, students must apply. Students who receive scholarships may choose to attend any private or public school that has applied to participate in the voucher program. However, any student who wishes to attend a participating private school still must apply for admission and be accepted to that school. Students who choose to stay in a school found to be in need of improvement can apply for grants so they can receive help from tutors. To participate in the voucher program, a private school must be located within the boundaries of the failing school district. Another public school district also may apply to participate if it is located next to the failing school district. Because voucher programs are in flux, it is advisable to check current state law for any changes. Community schools An Ohio community school (often called a charter school in other states) is a public, nonprofit, nonsectarian public school that operates independently of any school district and is sponsored by an authorized entity. A community school is generally created to provide a unique educational program or to meet the needs of an under-served subgroup of students. Agencies established by the Ohio legislature supervise Ohio s community schools. Community schools are public schools of choice and are state and federally funded. Community schools may be started only in school districts the state has determined to be challenged school districts and in Ohio s major urban districts. However, a student need not live within a challenged district to attend a community school. Like traditional public schools, community schools have open enrollment policies and must follow federal and state laws prohibiting discrimination based on race, disability, gender, national origin or religion. Community schools do not require parents to pay tuition and are exempt from state statutes that do not specifically apply to them. Therefore, they have more autonomy than traditional public schools. There are three major types of community schools: new start-up community schools, conversion community schools and Educational Service Center (ESC) conversion community schools. New start-up community schools must be located in challenged school districts. These challenged districts include Ohio s eight largest urban school districts as well as districts in academic emergency or on academic watch, and districts identified in Lucas County, the original pilot project area. 203

5 A conversion community school is created when a traditional school district converts all or part of an existing public school to a community school that operates independently of the sponsoring district. The conversion community school may be opened by any school district in the state and is considered its own district for many purposes. An ESC conversion community school is created when an ESC converts all or part of a building it owns or operates into a community school. An ESC-sponsored conversion community school may be opened in any district in the state in which the ESC owns or operates a facility. A school must enroll at least 25 students in order to qualify as a community school (regardless of community school type) and it may serve only as many students as its sponsorship contract application allows. A community school that receives too many applications must institute a lottery process so that each child who applies is given an equal opportunity for admission. Returning students and their siblings receive admission preference. Each community school establishes its own admission policy within its sponsorship contract. Like all public schools, students in community schools must take state tests to determine if they have made adequate yearly progress. If students do not perform adequately, Ohio will classify the school as not having met the standard for adequate yearly progress and may sanction the school. Community schools must meet state requirements as well as the federal requirements of the No Child Left Behind Act and the Individuals with Disabilities Education Act. (See an explanation of these acts later in this chapter.) Ohio School Funding & Management Both traditional public schools and community schools are funded on a per-pupil basis by the state, according to certain complex formulas. Local school districts also receive funding through local property taxes that are not permitted to be passed on to community schools. Public schools, including traditional and community schools, are eligible for grant programs through state, federal and private foundations. Public schools must adhere to federal and state regulations regarding school districts operation and management and are governed by locally elected boards of education. All students residing within the boundaries of a school district are eligible for enrollment and cannot be denied an education unless expelled. Private schools are funded through tuition costs, fundraising, donations and private grants. They also receive money from state grants and by meeting certain federal and state requirements. Because private schools are subject to fewer state and federal regulations than public schools, their administrators can create specialized programs, alter the curriculum of instruction and hire a teacher who holds a bachelor s degree, but not necessarily a teaching degree. Private schools can set admission standards and may refuse admission to any student for non-discriminatory reasons. Private school students must, however, take the Ohio Graduation Test or meet a stateapproved alternative requirement. Parochial schools are private schools that incorporate religious education into their curriculum. Students who enroll in parochial schools are not required to belong to any particular religious organization, but they are expected to participate in the school s religious classes and services. Student Rights First Amendment Rights Students do not lose their First Amendment right to freedom of speech when they enter school, but public, private and parochial schools may limit students rights to express opinions when the expressions are vulgar or offensive, or interfere with the educational instruction of other students. Also, school administrators may censor student expressions in speech and in writing if they are produced as part of a school activity or curriculum (such as an article for a school newspaper) and if there is a legitimate reason for doing 204

6 so (for example, if school officials determine that the subject matter is inappropriate). A school official may not, however, censor only one side of a debated issue. School officials may exercise censorship control over the speech and written materials of organizations, including religious and political organizations, that are not affiliated with the school, but only if the materials cause a disruption and interfere with the education and environment of the school. School administrators also may ban the distribution of materials that are vulgar, offensive or coercive, or they may limit when and where these materials are distributed. The First Amendment requires public schools to remain neutral with respect to religion. Teachers and administrators may not force students to pray, read religious text for which there is no approved educational purpose or lead students in prayer. However, public school students do have a right to voluntarily pray before, during or after school, and schools may not ban religious clothing. If a public school allows student-run clubs to meet outside of class time, a student-formed religious club also must be permitted to meet. Public schools also may implement a moment of silence, but may not require students to pray. In addition, courts have ruled that reciting the Pledge of Allegiance must be a voluntary act, and it is a violation of First Amendment rights for schools to require students to recite the pledge. Regulations on dress and hairstyles have caused students to voice concerns about their rights to freedom of speech as guaranteed by the First Amendment. Courts, however, generally have upheld any school dress regulation as long as the adopted codes are specific, do not discriminate and have some basis, such as to promote appropriate behavior and avoid unruly conduct. Hair codes are more difficult to enforce, but may be permitted when implemented for safety or other legitimate reasons. Student rights also include the freedom of association, which allows students to form clubs and groups and to meet during non-instructional time without school administration interference. If a school allows any student-initiated groups to form, administrators may not discriminate against or prohibit the formation of a particular studentrun group. School officials and staff members may not lead, participate in or control these groups, but most student groups have a faculty advisor assigned by the school to supervise the students during meetings. Students attending public schools generally have fewer limitations placed upon their freedom of speech than do students attending private or parochial schools. Because the First Amendment right of free speech is protected by the federal government, which funds and regulates public schools, it has greater control over public schools regarding First Amendment rights than over private and parochial schools that receive little or no federal funding. Student Discipline In Ohio, school officials generally may discipline a student for conduct that disrupts the school day or endangers the health or welfare of the student or others. Typically, a local school district will, through its board of education, circulate a student code of conduct. A school official typically determines consequences for unacceptable behavior. These may vary greatly and include warnings, corporal punishment (with limitations), detentions, in-school suspensions, Saturday school, out-of-school suspensions and expulsions. Some school disciplinary codes include broad prohibitions against willful misconduct, disobedience and intentional disruption. Increasingly, schools are using these more general prohibitions to impose discipline for actions that occur outside school. Out-of-school suspensions and expulsions are the most severe of the possible consequences. For out-of-school suspensions lasting up to and including 10 days, the student must receive oral or 205

7 written notice of the charges. If the student denies the charges, school administrators must provide an explanation and evidence and offer the student a chance to present his or her side of the story at an informal hearing. Frequently, the notice and hearing will take place at the same time in the disciplinarian s office. If a student poses a risk or ongoing threat, the student may be immediately removed from the school. This is called an emergency removal. Emergency removals may only last as long as the emergency that brought about the removal lasts, or until the school district can initiate formal disciplinary action against the student. Typically, emergency removals last no more than one to two school days. When a student is removed because of an alleged risk or threat, the school must give the student written notice of the reasons for removal and the right to attend a hearing to challenge the removal or to have the reasons explained. This hearing must be held within three school days after the student s removal. If a student is suspended for 10 or fewer days, the school need not give the student an opportunity to retain legal counsel, cross-examine witnesses, or call his or her own witnesses. However, parents who disagree with a suspension of 10 or fewer days may appeal the decision to the school s superintendent according to the district s policies. Any out-of-school suspension of more than 10 days is considered an expulsion. Students who face being excluded from school for longer than 10 days have certain rights. For example, the school must provide a written notice of the intent to expel to the student s parents (or to the student, if 18 years of age). This initial notice must outline the infraction and set a date for a hearing. The hearing must be held no sooner than three but no more than five days after the student s removal from school, and must be conducted by the superintendent or a representative. The student must be allowed to hear evidence against him or her, present his or her own evidence and bring legal counsel. The hearing must be recorded to create a permanent, verbatim transcript of the proceeding. If, at the hearing, it is decided that the student should be expelled, the district, within 24 hours, must send a second notice to the student outlining the length of the expulsion and his or her right to appeal to the board of education and state court. A student generally may be expelled for no more than 80 school days (which may extend into the next school year). For specific infractions, including drug or weapon offenses, a student over age 16 may be permanently expelled. A student, unless disabled, is not eligible to receive educational services from the expelling school; also, the student does not have a chance to make up missed work. Nevertheless, the student may apply to receive educational services from another public or private school in the state during the period of the expulsion. The other school may, but is not obligated to, accept the student into regular classes or provide educational services until the student fully serves the expulsion term. However, any grade or credit earned at the other school during the time of the expulsion will not be applied to the student s record in the expelling school. Due to state and local school boards zero tolerance policies, expulsions occur more frequently now than in the past. Under the zero tolerance policy, anyone bringing drugs, firearms, knives, or other weapons to school may be expelled. School districts may decide to include medicines or pocket knives in this list. These general provisions are modified for students that have been identified as or suspected of having a disability. For such a student, educational services must be continued, according to the Individualized Education Program (IEP), during periods of discipline beyond 10 days duration. If the student s conduct: 1) was caused by, or was directly and substantially related to, the disability; or 2) was the direct result of the school s failure to implement the IEP, then the behavior is onsidered a manifestation of the disability. Schools now may remove a student with disabilities who possesses drugs or weapons in school, or inflicts serious bodily injury on another person, even if the infraction is a manifestation of a disability, for 206

8 up to 45 days. If the disabled student is removed from school, the district must continue to educate the student in an interim alternative educational setting. (See sections later in this chapter for a more detailed explanation of discipline provisions as they apply to children with special needs.) Student Right to Privacy Increasingly, school districts are turning to traditional law enforcement techniques to secure their buildings and prevent drug or weapon use on school grounds. In Ohio, only law enforcement officials may carry guns onto school grounds. Also, no person may enter a school building with a concealed weapon, even if certified to carry a concealed weapon. Schools may use metal detectors to help ensure student safety. Similarly, locker searches conducted by school officials are permitted in emergency situations. A district s board of education may authorize random locker searches, as long as notice is posted in a conspicuous location. School boards also may specifically grant school administrators the authority to search a locker when there is reasonable suspicion that the locker contains evidence of violations of law or school rules. Searches of other personal property or persons are more strongly regulated, although they usually do not require a warrant. A school administrator may search a student or a student s belongings if it is reasonable to believe an inappropriate item will be found. School officials must be especially careful about justifying a search of a student s person, and about conducting the search so that it is limited in scope and not overly intrusive. Harassment Ohio s public schools are required to enact policies that prohibit student harassment, intimidation and bullying. Harassment refers to severe, pervasive or objectively offensive conduct based on a student s actual or perceived race, color, national origin, gender, disability, sexual orientation, religion or other identifying characteristic. Harassment includes physical, emotional or sexual conduct that causes harm to the targeted student, often affecting a child s performance in eductional or social activities. Bullying also may affect a student s school performance, but is not necessarily related to the target s race or other identifying characteristic. Ohio law defines bullying as any intentional written, verbal, or physical act that a student exhibits toward another student more than once and the behavior both: a) causes mental or physical harm to the other student; and b) is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for the other student. By law, every school must include both physical and mental harm in its policy against bullying. Federal laws prohibit particular types of harassment, but no comprehensive law addresses all forms of harassment in schools. The No Child Left Behind Act of 2001 requires school districts receiving federal money to provide a plan for making school environments conducive to learning, safe and drug free. All school districts must consult with employees, students, parents and community members to establish policies prohibiting harassment, intimidation and bullying. The policies must include: a) a statement prohibiting bullying on school property or at school-sponsored events; b) a procedure to report bullying; c) a requirement that school employees and volunteers report bullying to the school principal; d) a procedure for documenting and responding to incidents of bullying; e) a requirement that parents of students involved in bullying be notified of any incidents and given copies of any written reports; f) a discipline procedure for a student guilty of bullying another; and g) a strategy for protecting a victim from additional bullying or retaliation for reporting it. Also, schools must report any bullying incidents to the Ohio Department of Education and on their websites at least two times a year. Parents who suspect that their child has been a victim of bullying should review their school s bullying policy and contact the school s principal. If the school has not solved the problem, contact the school superintendent or a board member. 207

9 For bullying prevention resources, parents may contact the Ohio Department of Education s (ODE) Office for Safety, Health and Nutrition and explore the Safe and Supportive Learning Programs that are part of ODE s Office of Family and Community Support. In Ohio, schools and teachers who are acting appropriately and seeking to help students develop their skills are protected from liability (civil or criminal responsibility) for ordinary school situations. Typically, schools and teachers are held liable for only the most severe cases of intentional misconduct. However, Ohio students must be supervised, and schools and their teachers may be held liable for foreseeable injuries if supervision is inadequate. Also, schools must respond in a timely manner to code of conduct violations and harassment complaints. Child Abuse Reporting Obligations Ohio has laws aimed at protecting children from abuse and neglect. Child abuse is actual, deliberate physical or mental injury or death or the threat of injury to a child s health or welfare. Abuse includes inappropriate sexual behavior. The definition of child neglect is broader and includes situations where parents refuse to provide proper or necessary subsistence, education, or either physical or mental health care. Under Ohio law, mandatory reporters must immediately report child abuse or neglect to local law enforcement or human services agencies. Mandatory reporters include teachers and other authorized school employees, counselors, health care professionals, child care workers, attorneys, clergy and others who work closely with children or are charged with protecting children. Mandatory reporters must report any known or suspected abuse or neglect to local children s services agencies and cannot be sued for following through on this obligation. If they fail to report known abuse or neglect, they may face both criminal and civil liability. Other community members are not required to report abuse or neglect, but they may choose to contact law enforcement or human services agencies with good faith reports of possible abuse or neglect. Special Education General Provisions In general, the federal Individuals with Disabilities Education Act (IDEA) was passed to ensure that: 1) all children with disabilities receive a free, appropriate public education that meets their unique needs and prepares them for employment and independent living; 2) the rights of children with disabilities, and parents of such children, are protected; and 3) states and localities receive support in educating disabled students. Also, IDEA provides for assistance to states in developing early intervention services and educational assessment tools. Early Intervention Programs IDEA provides for early intervention services for children from birth until age three if they: 1) are experiencing a developmental delay in one or more areas or 2) have a diagnosed physical or mental condition that is likely to result in developmental delay. Developmental delay is a delay in one or more areas of development (cognitive; physical, including vision, hearing and nutrition; communication; social or emotional; and/or adaptive behavior). In Ohio, the Ohio Department of Health (ODH) provides early intervention services under the Help Me Grow system. The ODH makes IDEA funds available to county Family and Children First Councils, which administer Ohio s early intervention programs. These funds may be used to maintain a system of services for eligible infants and toddlers, provide direct services for eligible children if not already provided by other public agencies or private sources, and to expand services for eligible children. The state of Ohio, through its local agencies, must identify and evaluate all eligible infants and 208

10 toddlers at no cost to the family. Children from birth to three years who are referred for services must receive a developmental screening within 45 days of referral, and eligibility must be determined within 45 days following the screening by a developmental evaluation team, which includes the parents and at least two qualified personnel from two different disciplines. Eligible children must be provided many services at no cost. In certain circumstances based on need, specialized services such as counseling, nursing, health services, therapy, and transportation also may be paid for through IDEA funds. Within 45 days of eligibility determination, an Individualized Family Service Plan (IFSP) is prepared. The IFSP identifies the services to be provided to an eligible child and includes a summary of the child s development, the family s resources and concerns about the child, outcomes to be achieved and a list of resources. Specific services must be identified and provided, if possible, in the child s natural environment. Individualized Family Service Plans must be reviewed 120 days after services begin and at least once a year afterwards. In addition, a licensed professional (in nursing, social work, early childhood education or a related discipline), with a minimum of two years experience working with children from birth to age five must coordinate the delivery of services to the child with a variety of agencies. This service coordinator also helps the child to transition to preschool or to the local school district. Early Intervention Procedural Safeguards Parents whose child is receiving early intervention services must be notified regularly of certain procedural rights such as the right to receive written notice before any change of service and the right to administrative review of complaints. Parents must give written consent before their child can receive any evaluation or services. For more information on Ohio s Early Intervention Program (age 0-3), visit the Ohio Department of Health s website at ohio.gov (choose Early Intervention from alphabetical index). Child Identification Requirements Each state must have a program to identify, locate and evaluate children requiring special education and related services. The program must include highly mobile children with disabilities, such as migrant and homeless children, and those who continue to advance in school, but need special education. Ohio s state rules make each school district responsible for identifying, locating and evaluating all children below age 22 living within the school district who need special education and related services. Free Appropriate Public Education The IDEA requires school districts to provide all eligible students with a Free Appropriate Public Education (FAPE). Free Appropriate Public Education is special education and related services that: 1) have been provided at public expense, under public supervision and direction and without charge; 2) meet the standards of the state s educational agency; 3) include an appropriate preschool, elementary or secondary school education in the state involved; and 4) meet the IEP requirements. Each school district must adopt and implement written procedures ensuring FAPE to all children with disabilities, aged three through 21 years. Evaluations and Re-evaluations of Students with Special Needs Under IDEA, school districts must conduct evaluations and re-evaluations to determine initial and ongoing eligibility for special education and related services. Before conducting such an evaluation, a district must get consent from parents or legal guardians, and must explain, in writing, the district s proposed evaluation procedures. Following an initial evaluation to determine the educational needs of a child with a disability, 209

11 the district must re-evaluate the child at least once every three years, or at the request of a parent or teacher, or if conditions warrant a re-evaluation. However, re-evaluations may not require new assessments in all educational areas. The Individualized Education Program (IEP) team may waive additional testing of the student if it finds that existing evaluation data is sufficient. A re-evaluation is required before a district can determine that a student no longer qualifies as a student with a disability. The district must test all suspected areas of disability and educational need and may not use only one procedure as the sole criterion for determining eligibility or an appropriate program for a student. When evaluating a student, the district also must consider information provided by the parents and professionals working with the child. Parents who disagree with the results of the district s evaluation can request an Independent Educational Evaluation (IEE) at public expense. Role of the Individualized Education Program (IEP) and the IEP Team The IEP is the written program of specific special education and related services designed to meet the unique educational needs of a child with a disability. Each child with a disability should have an IEP in effect on the first day of school each year and it must be implemented as written. The IEP is a working document that must be reviewed and revised at least once a year. It is put together by the IEP team, which must include the child s parents, at least one of the child s regular education teachers (if the child participates in the general curriculum), at least one of the child s special education teachers, a qualified district representative who can provide resources, someone who can interpret evaluation results and implications for instruction and the child, if appropriate. At a minimum, according to Ohio law, an IEP should outline: the child s present levels of performance; short-term goals and instructional objectives; measurements, criteria and a schedule for evaluation; 210 a statement outlining the specific special education services to be provided and the extent to which the child will participate in regular education programs; when services will start and how long they will last; how services will be delivered; and any modifications or additions to the proposed program to fit the particular needs of the child. When putting together a program, the IEP team must review special factors and other considerations, including the need to address behavior, English proficiency, visual impairments, communication, assistive technology devices and services, physical education services, extended school-year or summer services, transition planning and services to students age 14 and older, and state- or district-wide assessment requirements. Resolving Disagreements Concerning Special Needs Children When parents and the school district disagree about a child s special education services, parents may bring an expert, advocate or attorney to an IEP meeting to discuss the issues. Parents also may discuss the matter with the school s special education coordinator. If these discussions are not helpful, the Ohio Department of Education (ODE) offers free mediation services to help resolve disagreements about services for the child. Parents also may file a written complaint with the ODE. If resolution methods do not work, parents or districts may file a request for an impartial due process hearing. An impartial due process hearing is an administrative hearing overseen by a hearing officer who is charged with hearing all evidence and determining the appropriate educational services for a student with a disability. The hearings are typically held at an agreed-upon location within the boundaries of the school district. Information about all aspects of special education is available through ODE s website at

12 Identification of Gifted and Talented Students Ohio recognizes the specific challenges and benefits of instructing gifted and talented children. All Ohio school districts must have a plan or local board policy, approved by the ODE and distributed to all parents, to identify gifted and talented children in their schools. This identification must be based on tests and checklists that appear on an approved list prepared by ODE and assessments must be available on a regular basis. When conducting screening assessments, districts must include children who are culturally and linguistically diverse, come from low socio-economic backgrounds and who have special needs. In Ohio, children may be identified as gifted in four different categories: superior cognitive ability, specific academic ability in a field (including math, language arts, science, or social studies), creative thinking ability, and visual/ performing arts ability. Each field has its own criteria, which must typically be met on a measurement within the preceding two years for the assessment to be valid. During the identification process, parents must be notified about assessment results and about whether the child has been identified as gifted or talented. Parents also may submit assessments performed outside the district by trained personnel for consideration. A parent who disagrees with the district s determination may appeal according to school board policy. While Ohio schools must have a plan for identifying gifted and talented students, they do not have to provide special services for these students. For complete information concerning Ohio s gifted and talented programming, visit the ODE website at Federal Legislation and Education A number of federal acts and amendments affect U.S. educational programs. Many of these acts or amendments apply to all schools in Ohio that receive federal funds, including all public schools and most private schools. Title IX Established to promote gender equality in schools, Title IX of the Educational Amendments of 1972 prohibits any federally funded educational program or activity from discriminating based on sex. Title IX extends to all areas of public schooling and protects all students and employees of educational institutions that receive federal funds. Each school must have a Title IX Coordinator, who works with the Office of Civil Rights within the U.S. Department of Education to enforce Title IX policies. The Office of Civil Rights protects the anonymity of anyone who files a complaint, and the institution that is the subject of the complaint must not retaliate against someone who complains. Any school that does not comply with Title IX may have to pay money, including any attorney fees, to the person who brought the complaint. Also, violations of Title IX may jeopardize the school s federal funding. Section 504 of the Rehabilitation Act of 1973 The Rehabilitation Act of 1973 made it unlawful to discriminate against individuals with disabilities in activities funded by federal subsidies or grants. Section 504 of the act covers all public or private programs or activities that 211

13 receive federal assistance and, therefore, includes all public elementary and secondary schools and most colleges and universities. According to Section 504, schools may not discriminate against students with disabilities and must provide such students with reasonable accommodations and, in some cases, services. Section 504 protects individuals with impairments that substantially limit a major life activity, such as concentrating or learning. Unlike IDEA, which covers students in public schools until age 22, Section 504 covers all individuals no matter the age. For example, college students are covered, as are employees if they work for a company that receives federal funds. Section 504 requires that knowledgeable people from a variety of sources determine students eligibility. Eligible students are entitled to a Section 504 plan to address their educational needs and may receive their services in the regular classroom or a special education room, based on individual needs. Schools must re-evaluate students periodically or before a significant placement change is made. Although a plan must be developed to outline services under Section 504, it is not as detailed as an IEP written under IDEA and it does not address implementation accountability. Students with disabilities who meet the criteria for eligibility under both Section 504 and IDEA are served with one plan, the IEP written under IDEA, and are not entitled to separate plans under Section 504. Also, parents of children under age 18 may help develop the plan, but do not have the procedural safeguards provided in IDEA to help them enforce the plan. There is a free appropriate education requirement under Section 504, but it is not as encompassing as the requirement under IDEA. All students who are classified under IDEA are also covered by nondiscrimination under Section 504. Because the eligibility definition under Section 504 is broader, however, not all students on 504 plans may be covered under IDEA. Americans With Disabilities Act of 1990 (ADA) In 1990, Congress enacted the Americans with Disabilities Act (ADA), a civil rights statute extending the concepts of Section 504 to: 1) employers with 15 or more employees; 2) all activities of state and local governments, including employment and education; and 3) all places that offer goods and services to the public. The act requires public places to make reasonable modifications to policies, practices, and buildings unless those modifications would fundamentally alter the nature of the services or be an undue burden. The regulations of the ADA parallel Section 504 regulations. While most schools provide Section 504 plans rather than ADA plans, school districts still must have an ADA policy in place, must actively enforce it and must make it available upon request to parents. No Child Left Behind The aim of the federal No Child Left Behind Act of 2001 was to improve schools nationwide by addressing standards and accountability, providing more choices for parents, increasing local control and flexibility, and using teaching methods that scientific research supports. No Child Left Behind requires schools to implement a statewide accountability system to ensure continual and substantial academic improvement for all students. This accountability system (Adequate Yearly Progress, or AYP), seeks to narrow the achievement gaps among students by requiring schools and districts to report achievement ratings of state-developed annual goals to the state. The achievement ratings, gathered through the use of a statewide assessment, determine how well schools are performing. The statewide assessments are based on annual measurable goals for reading and mathe- 212

14 matics. The state determines what percentage of students must test as proficient on these assessments for a school or district to be adequately progressing. Also, in order for a school to meet AYP, 95 percent of all students must participate in the statewide assessment based on these annual objectives. Elementary and middle schools also must maintain a certain attendance level, and secondary schools must maintain a certain graduation rate. A school district that does not have the necessary percentage of proficient students still may meet the AYP standard if it has reduced the number of non-proficient students by at least 10 percent from the previous year s report. If a school and/or district fails to meet the state s AYP standard, the state will apply sanctions (such as requiring implementation of a school improvement plan) to bring about improvement. If a school fails to meet the AYP standard for two years in a row, the school will earn School Improvement Status. Students enrolled in such a school can choose to enroll in another of the district s schools that is not under improvement status. This is known as school choice. Schools that continue to fail to make AYP will receive supplemental services from the state and other arrangements may be made for the school s management. For example, such a school may be closed and reopened as a community school or the school s staff may be replaced. In response to the No Child Left Behind Act, Ohio has restructured its assessment methods to enhance student learning and instruction. Students in kindergarten through grade 9 take the Ohio Achievement Assessments in reading, writing, math, science and citizenship on a rotating basis. Students in grade 10 take the Ohio Graduation Test (OGT) in all five assessment areas. In order to receive a high school diploma, students are required to take and pass all five assessment areas of the OGT or pass four out of five assessments and meet other criteria, as outlined on the Ohio Department of Education website (under Alternative Pathway for Eligibility for a Diploma). Students with disabilities who have taken the OGT, but whose assessment teams determine that they should be excused from passing all or part of the OGT, still may receive a high school diploma. Family Educational Rights and Privacy Act / Student Records The federal Family Educational Rights and Privacy Act (FERPA) protects the confidentiality of educational records maintained by any educational institution receiving federal funds (or by someone acting for the institution). FERPA provides parents and eligible students (those over age 18 or in a post-secondary program) certain rights regarding records, files, documents or other materials containing personal information about the student. Some information (such as name, address, phone, degree, etc., as might be found in a directory) can be disclosed without the student s consent, but affected parents and students must be notified first. There are some exceptions to the general rule that the school cannot disclose information without parental consent. For example, the school may release educational records to other school officials who have a legitimate educational interest in the information, or information may be shared in an emergency to protect the health or safety of the student or others. Each school must comply with FERPA and notify parents and eligible students annually of their rights. For more information about FERPA, visit the U.S. Department of Education s website at: and type in FERPA. School districts must be aware of the interaction between FERPA requirements and the Ohio Public Records Act. 213

15 For Journalists: Covering Education Law Under Ohio open meetings and public records laws, journalists covering education issues generally have access to school district decisions and strategies for education in their districts. Journalists face greater challenges in the reporting of specific education stories about students. Educational records containing personally identifiable information about students generally are not subject to disclosure. Journalists should be aware of concerns for student privacy rights (see media law section on privacy). Because the educational and legal systems often protect the release of information about minors in an effort to safeguard their development, journalists are advised to consult with their own counsel on their rights of access to student records that contain personally identifiable information, when reporting about specific children in schools. Chapter Summary A child may attend a public school without tuition payment if a parent lives in that school district. There are also other circumstances in which a child can attend a public school without tuition, such as when a child lives with someone other than a parent or receives special education. Ohio mandates compulsory education for all children living in Ohio who are between six and 18 years of age. Attendance is required until the student meets the state s minimum standard and receives a diploma. However, this requirement may be waived or modified if a child has a valid excuse, the parents decide to educate the child at home or the child is eligible for an age or schooling certificate. According to Ohio law, parents are responsible for making sure their children are not truant from school. There are several state-approved alternatives to public education. In certain situations and through a voucher program, public funds may be available for students to attend private schools. Also, the Ohio legislature has established agencies to supervise community schools in Ohio; these schools generally have more autonomy than traditional public schools. Traditional public schools and community schools are funded on a per-pupil basis by the state according to certain formulas. Local school districts also receive funding through local property taxes. Private or parochial schools are funded through tuition costs, fundraising, donations and private grants, and (if they meet federal and state requirements) state grants. Students do not lose their First Amendment rights when they enter school, but public, private and parochial schools may limit students rights to express opinions when the expressions are vulgar or offensive, or when they interfere with the educational instruction of other students. Continued on page

16 Chapter Summary continued The No Child Left Behind Act of 2001 requires school districts receiving federal funds to provide a plan for making classroom environments conducive to learning and schools safe and drug free. Under Ohio law, mandatory reporters must immediately report child abuse or neglect to local law enforcement or human services agencies. Mandatory reporters include teachers and other authorized school employees. The Individuals with Disabilities Education Act (IDEA) provides for free and appropriate public education, including early intervention services, for children with special needs. The Ohio Department of Health also provides early intervention services through its Help Me Grow program. Each state must have a program to identify, locate and evaluate children requiring special education and related services. Under the IDEA, school districts must determine initial and ongoing eligibility for special education and related services by conducting evaluations. The Individualized Education Program (IEP) is the written plan of specific special education and related services designed to meet the educational needs of a child with a disability. All Ohio school districts must have a plan or local board policy to identify gifted and talented children in their schools, although they are not required to provide special services for these students. Title IX of the Educational Amendments of 1972 prohibits any federally funded educational program or activity from discriminating based on sex. Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 make it unlawful to discriminate against individuals with disabilities in activities of the federal government and in all places that offer goods and services to the public. The No Child Left Behind Act of 2001 requires public schools to implement, at the state level, an accountability system that will ensure continual and substantial academic improvement for all students. The federal Family Educational Rights and Privacy Act (FERPA) protects the confidentiality of educational records maintained by any educational institution that receives federal funds. With some exceptions, the general rule is that a school cannot disclose information about a student without parental consent. 215

17 Web Links: From the OSBA s Law You Can Use column: (search by title or topic) Are Schools Legally Responsible for Your Child s Sports Injuries? Children with Special Needs Can Get Funds for Private School Placement Choosing the Right Student Loan Circumstances Say Whether Minors Are Emancipated Divorce, Separation Raise School-Related Concerns Extended School Year: Summer Options for Students with Disabilities Grandparents Can Get Authority To Make School Decisions for Grandchildren Ohio Law Prohibits Bullying in Public Schools Ohio Law Says Where Students Can Attend School Tuition-Free Parents Must Take Responsibility for Truant Students Positive Behavioral Support Plans for Students with Disabilities Public Schools Adapt to Student Violence Issues Public Schools Can Impose Dress Codes Public Schools May Test Students for Drugs under Certain Circumstances School Evaluations and Independent Evaluations: The Foundation of Special Education Eligibility Schools Have Authority To Search Lockers Schools Must Assist Students with Reading Difficulties Schools Must Follow Procedures To Suspend or Expel Students Service Dogs in the School Setting Student Loans: Advice for Parents and Children Tina s Law Requires Public Schools To Address Dating Violence Transition Services Help Children with Disabilities Move to Post-School Activities What You Should Know about Getting Help for Your ADD Child What You Should Know about Home Instruction What You Should Know about Home Schooling What You Should Know before Making a Public School Donation U.S. Department of Education s website: Ohio Department of Education s website: 216